will, as in the present case, operate to the extinction of a legal, pre-existing obligation or contract. But a discharge, fraudulently obtained, is of no virtue-of no operation; and is, in truth and in law, no discharge; it has neither legal effect, nor even legal existence as to the party himself, and the surety, who stands in his shoes. If the judgment be of no avail as to the principal, it will be of no avail as to the surety; it cannot be ineffectual as to the one, and operative as to the other. The discharge must be legal to be valid, and to exonerate the surety from the special condition of the bond. The judgment itself is a fraud on the law; and I can discern no difference between the debtor's going beyond the prison bounds voluntarily, or under colour of a judgment so obtained; except, that the latter is a case of deeper die, and less excusable in a legal and moral view than the former.

Although Simms is liable to be imprisoned by virtue of a new process, yet he may have gone out of the jurisdiction of the court; or if not, Slacum will be deprived of the benefit of the bond which Simms and Wise executed.

The sheriff stands on different ground; for he is exonerated from all liability, by an express provision in the statute. Besides, if the justices have jurisdiction of the subject, and should not exceed their jurisdiction, it is not incumbent on the sheriff to examine into the regularity, fairness, and validity of their proceedings and judgment; he looks at the instrument of discharge which, emanating from a competent authority, it is his duty to obey. But though the discharge may excuse the sheriff, as an officer of the court, it will not excuse the party, nor his surety. it is inoperative, and of no legal efficacy.

As to them

The United States v. Fisher et al. assignees of Blight.

IT cannot be a question, but that it is more pleasing to the mind to find itself with the majority of a court in giving an opinions and, where constrained to dissent, it cannot be unpleasing to find that this dissent is approved by the bar; or even by intelligent persons, out of doors; more especially if these persons are of a standing and just pretension to legal knowledge. Even an expression of the sense of the multi

tude, is not, in all cases, wholly to be disregarded. It cannot be ungrateful to have one's judgment approved, even by a simple mind, because, it goes some length, however small, in reconciling to ones-self what it has done; and giving the satisfaction of believing that we had not conceived amiss of the law, and justice of the case; but to have it approved by the intelligent, is still a greater satisfaction to the mind. It also contributes to inspire confidence in our own strength, and to secure independence of opinion on other occasions. This holds still more, or at least equally, where the judgment of a court below, is to undergo the revision of a court of error. So that though a judge, or a court below would from conscience; or if this was the weaker power, on principle of delicacy, and a sense of honour; or what is more, a principle of self-preservation, be willing not only to avoid the act, but also to escape the imputation of attempting, in the most distant degree, to influence the revision of his opinion, yet it would give him more pleasure to have his judgment affirmed rather than reversed; unless, indeed, from reasons that had occurred to his own mind, or delivered by the court above, he should come to alter his opinion. In that case, he would be unworthy of the name of judge, that would not acquiesce, and be internally satisfied. And it is only in the case of a weak understanding that cannot well afford to be thought wrong, that, under these circumstances, pain would be felt, or unfavourable impressions of inferiority would ot

cur.

It is no uncommon thing for a reader of reports, or rather, it is too common to look at nothing more than the decisions of the court, and to take it for granted, that the minority are in the wrong. The presumption is doubtless against them and the maxim is, stabitur presumptioni donec in contrarium probetur. But what proof can be offered, but the examination of the reasons. And without examining, the conclusion of error is unfair. There cannot be a more useful exercise of mind to the student than an examination of cases, where the court have been divided. Or where the court above has reversed the decision of an inferior; as in

the present case, which was an appeal from the decision of judge Washington, on a writ of error from the circuit court of the district of Pennsylvania. It may have been seen from some things already stated on the subject of the acts of congress, that I think the decision of Judge Washington, and for the reasons given in this case of Blight perfectly correct, It was not necessary for him to call in question the constitutionality of the acts of congress, on this head; or of the act immediately before him; the construction that ought to be put upon it being the only question. The court above reversed his construction; but his reasons stand, and will prevail. It is not likely that a construction so palpably erroneous as that of the superior court, can receive the sanction of an adjudication, by succeeding judges. At all events, it cannot be, but that the attention of congress will be drawn to it, and the act will be so amended, as to be restrained in the extent of such construction; or repealed altogether; and which in my judgment it ought to be; as being unnecessary to carry the powers given into effect; and, therefore, unconstitutional, and void. The congress is charged with the common defence, and the payment of the national debt; but the very power first given, sec. 8, n. 1, to lay and collect taxes," &c. supersedes all necessity of a recurrence to preference, and thus taking away the property of an individual, without compensation. And what compensation could be given but the thing itself. For it is the debt due that is taken from the creditor by the preference given to the union.

The question is, says judge Washington, "have the United States a right in all cases whatsoever to claim a preference of other creditors in the payment of debts."

WASHINGTON, J Although I take no part in the decision of this cause, I feel myself justified by the importance of the question in declaring the reasons which induced the circuit court of Pennsylvania to pronounce the opinion which is to be re-examined

here.

In any instance where I am so unfortunate as to differ with this court, I cannot fail to doubt the correctness of my own opinion But if I cannot feel convinced of the error, I owe it in some rare

sure to myself and to those who may be injured by the expense and delay to which they have been exposed to shew at least that the opinion was not hastily or inconsiderately given.

The question is, have the United States a right in all cases whatever to claim a preference of other creditors in the payment of debts. At the circuit court the counsel for the United States disclaimed all idea of founding this right upon prerogative principles, and yet, if I am not greatly mistaken, the doctrine contended for places this right upon ground at lest as broad as would have been asserted in an English court.

The whole question must turn upon the construction of acts of congress, and particularly that of the 3d of March 1797. The title of the law is "an act to provide more effectually for the settlement of accounts between the United States and receivers of public money."

The first section describes more specially the persons who are the objects of the law; points out the particular officer whose duty it shall be to institute suits against those public delinquents thus marked out; declares the rate of interest to be recovered upon balances due to the United States, and imposes a forfeiture of commissions on the delinquent.

The 2d section defines the kind of evidence to be admitted on the part of the United States, in the trial of suits in all cases of delinquency.

The 3d section gives to the United States in such actions, a preference of all other suitors in court, by directing the trial of such causes to take place at the return term upon motion, unless the defendant will make oath that he is entitled to credits which have been submitted to the consideration of the accounting officers of the treasury, and rejected.

The 4th section takes up the case of the defendant, and declares under what circumstances he shall be entitled to the benefit of off sets.

The 5th section brings us to an important part of the trial, and furnishes a rule to govern the court in the judgment, it is to render, in cases where the claim of the United States might, by reason of the insolvency of the debtor, go unsatisfied, unless preferred to that of a private citizen.

The 6th section is general in its terms, and relates to executions where the defendant or his property is to be found in any district other than that in which the judgment was rendered.

TT

This is a concise view of the different parts of this act, and I shall now examine more particularly the expressions of the 5th section taken in connection with those which precede it.

The words are "that where any revenue officer or other per son hereafter becoming indebted to the United States by bond or otherwise, shall become insolvent, the debt due to the United States shall be first satisfied," &c.

It is conceded that the words "or other person" are broad enough to comprehend every possible case of debts due to the United States, and therefore a literal interpretation is contended for by those who advocate the interest of the United States. On the other side, a limitation of those expressions is said to be more consonant with the obvious meaning of the legislature, which contemplates those debtors only who are accountable for public mo

ney.

Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. But if, from a view of the whole law, or from other laws in pari materia, the evident intention is different from the literal import of the terms employd to express it in a particular part of the law, that intention should prevail, for that in fact is the will of the legislature.

If a section be introduced which is a stranger to and unconnected with the purview of the act, it must nevertheless take effect according to its obvious meaning, independent of all influence from other parts of the law. Nay, if it be a part of the same subject, and either enlarges or restrains the expressions used in other parts of the same act, it must be interpreted according to the import of the words used, if nothing can be gathered from such other parts of the law to change the meaning. But if in this latter case, general words are used which import more than seems to have been within the purview of the law, or of the other parts of the law, and those expressions can be restrained by others used in the same law, or in any other upon the same subject, they ought in my opinion to be restrained.

So if the literal expressions of the law would lead to absurd, unjust or inconvenient consequences, such a construction should be given as to avoid such consequences, if, from the whole purview of the law, and giving effect to the words used, it may fairly be done.

These rules are not merely artificial; they are as clearly found